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Thursday, December 13, 2012

Work Revising Criminal Standards Flows From Life in Criminal Law

For prosecutors and defense attorneys, the American Bar Association’s Criminal Justice Standards for the Prosecution and Defense Functions, sometimes affectionately known as “the little red book,” functions as a bible for the profession.

Often, young prosecutors and public defenders are handed a copy on their first day on the job. The Standards serve as a guide for their conduct and helps ensure fair application of the criminal law. While not law themselves, the standards are often used to determine attorney discipline. They have been cited thousands of times by lower courts and more than 100 times by the U.S. Supreme Court, particularly in decisions evaluating the effective assistance of counsel.

The criminal justice standards, however, have not been updated since 1992, well before societal changes such as the advent of social media and the development of DNA testing. The standards need to keep pace with innumerable changes in culture and in the profession, including constitutional revisions of sentencing practices, how claims of actual innocence are handled, prosecutorial immunity, and other unanticipated trends.

Enter stage left UC Hastings Professor Rory Little, who, seven years ago, was named by the ABA as the Reporter for the fourth edition. It is a fitting role for Little, whose 30 years of law practice includes time as a federal prosecutor, a criminal defense attorney, a U.S. Supreme Court law clerk and a high-level Department of Justice official. Little teaches constitutional law and criminal procedure, and is a nationally recognized authority on criminal litigation ethics. Incidentally, Little spent two months clerking for Justice Lewis F. Powell Jr., who in 1964 commissioned the writing of the first Criminal Justice Standards when he was president of the ABA.

As Reporter, Little suggests proposed revisions, drafts new standards, and serves as scribe for the three ABA committees charged with revising them. His work is, in effect, writing a book by committee. As the standards are so important, many stakeholders have weighed in with suggestions and comments. The Hastings Law Journal and Constitutional Law Quarterly devoted a full-day symposium and two issues of articles to the proposed revisions in 2011.

“A lot has changed in 20 years,” said Little. In addition to the original 85 standards, all of which have proposed changes, this edition will likely contain some 25 new standards. Some spell out conduct addressed by case law in the intervening years, while others deal with new trends and issues.

Little’s task force completed an initial draft of revisions in 2010. The recommendations are currently before the ABA’s Criminal Justice Standards Committee. They will then be vetted by the Criminal Justice Section’s Council, and finally the ABA’s nationwide House of Delegates.

So the final product still lies perhaps two years in the future. “I knew going in this would be a slow process, but I would like to see it completed before I die,” joked Little. “I’ve never had a case or article go on this long. It’s Bleak House, for sure.”

“The good news is these standards are very influential. The bad news is that because they are so influential, everyone wants a voice, and, in the end, some stakeholders will likely still not be happy,” he said.

Little said he believes in general that the conduct of both prosecutors and defense attorneys has improved in the last 20 years. “Standard behavior has improved dramatically, especially since 1970. The Supreme Court and lower courts have given criminal lawyers much more direction on what they can and can’t do. Cases dealing with ineffective assistance of counsel, which basically started in 1985 with the Strickland case, have been tremendously helpful.”

Other trends, such as televised trials and groups such as the Innocence Project have put a spotlight on the actions of both prosecutors and defense attorneys. DNA testing that clears convicted individuals of charges often reveal attorney conduct issues. “There is no doubt that the standard of conduct in criminal cases, by prosecutors and defense attorneys, and the quality of judging have all gotten better,” Little said. Twenty years ago, for example, judges would routinely deny requests for discovery of information. “Judges are now more suspicious and allowing more discovery,” he said.

One challenge is to make the standards applicable to different communities and jurisdictions. What works in a small county prosecutor’s office may not work in a large busy metropolitan court system. There is also the challenge to make the standards as “revenue-neutral” as possible. “The criminal justice system is better, but better sometimes means more expensive. The whole system costs more now, and we need to be mindful of that.”

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